Citation: Small v R [2013] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 15 July 2013
Judges: Emmett JA; RA Hulme J; RS Hulme AJ
Background
In the early hours of 1 May 2008, a workboat carrying 14 people collided with a fishing trawler near Bradley's Head in Sydney Harbour. Six passengers on the workboat died as a result. The workboat was overloaded, licensed only for eight people, and most on board had consumed alcohol and drugs during an evening farewell gathering at a Balmain hotel.
The appellant, a passenger without a boat licence, had been invited by the licensed coxswain to take the helm shortly before the collision. He sat in the driver's seat, adjusted the course when directed, and was behind the helm at the moment of impact. He had not previously driven a vessel of that kind.
The appellant was convicted of six counts of dangerous navigation occasioning death under s 52B(1)(a) of the Crimes Act 1900 and sentenced to seven years and six months imprisonment with a non-parole period of five years. The coxswain, tried alongside him, was convicted of six counts of manslaughter and received the same sentence. The appellant challenged both his conviction and sentence on appeal.
Legal Issues
- Whether "navigate" in s 52B of the Crimes Act 1900 is confined to the holder of a master's certificate or licence, or whether it extends to any person physically controlling the helm at the time of impact.
- Whether the trial judge misdirected the jury on the meaning of "navigate" by failing to restrict it to those with formal authority over the vessel.
- Whether the sentencing judge erred by imposing the same sentence on the appellant as on the coxswain, given the coxswain was convicted of the more serious offence of manslaughter and bore greater overall responsibility.
Decision
Conviction: The meaning of "navigate"
The central question on conviction was whether the appellant was "navigating" the workboat within the meaning of s 52B at the time of the collision. The appellant argued that he was merely operating the helm under direction, and that "navigate" should be understood to mean something closer to exercising overall command or authority over the vessel, a role that belonged throughout to the licensed coxswain.
The Court of Criminal Appeal rejected that argument. Emmett JA held that "navigate" in s 52B is not confined to the person with formal authority or a licence. The ordinary meaning of the word includes the physical act of controlling a vessel's direction and speed. The appellant had taken the helm, adjusted the vessel's course, and was steering it at the moment of impact. That conduct fell squarely within the statutory term. No misdirection by the trial judge was established.
Sentence: Parity with the co-offender
The appellant contended that receiving the same sentence as the coxswain was unjust. The coxswain had been convicted of the more serious offence of manslaughter, was the licensed master, had permitted an unlicensed person to take the helm, and bore primary responsibility for the voyage.
The Court acknowledged those differences but found no error in the sentencing outcome. Both men were found equally culpable for the collision in practical terms: the coxswain abandoned his responsibility, and the appellant assumed control of the vessel knowing he was intoxicated and impaired. The Crown had presented the collision as caused by their combined acts and omissions, and the jury's verdicts were consistent with that. Neither had pleaded guilty, no significant difference in their subjective circumstances was established, and the sentencing judge had expressly addressed the disparity in offence categories. In those circumstances, the identical sentence gave rise to no justifiable sense of grievance.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted, but the sentence appeal dismissed.
Key Takeaways
- Under s 52B(1)(a) of the Crimes Act 1900, "navigate" extends to any person physically controlling a vessel's helm at the time of an impact, and is not limited to the licensed master or the person with formal command authority.
- A person without a boat licence can be found to have been "navigating" a vessel if they were in the driver's seat, steering the vessel, and adjusting its course at the relevant time.
- Parity in sentencing does not require identical offences: where two co-offenders are jointly responsible for the same fatal outcome, the same sentence may be warranted even where one faces a nominally more serious charge, provided the sentencing court adequately addresses the differences.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that the coxswain's abandonment of responsibility and the appellant's decision to take the helm while intoxicated and unlicensed were treated as equally culpable contributions to the deaths of six people.
- No error in the trial judge's directions to the jury was established, and the conviction appeal was dismissed unanimously by all three judges.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 52A, 52B
Cases
- Green v Regina [2011] HCA 49; (2011) 244 CLR 462
- Elbe Shipping SA v The Ship "Global Peace" [2006] FCA 954; (2006) 154 FCR 439
- Frost v Warner [2002] HCA 1; (2002) 209 CLR 509